Comments on the ICANN Proposed Final Version of the Applicant Guidebook

[Carlos A. Afonso]

+1

--c.a.

On 12/10/2010 02:49 PM, Nicolas Adam wrote:
> I certainly agree.
> Nicolas
>
> On 12/10/2010 11:33 AM, Avri Doria wrote:
>> Milton,
>>
>> Thanks for forwarding this on.
>>
>> Does the NCSG, and/or the NCUC, and/or the NPOC, and/or the Consumer
>> Constituency/Interest-group wish to endorse it?
>>
>> a.
>>
>> On 10 Dec 2010, at 10:59, Milton L Mueller wrote:
>>
>>> The IGF Dynamic Coalition on Freedom of Expression has submitted
>>> these comments to ICANN regarding the free expression issues raised
>>> by the so-called “limited public interest” objection.
>>>
>>> From: Ben Wagner [mailto:b at nwagner.org]
>>> Sent: Friday, December 10, 2010 10:27 AM
>>> To: 5gtld-procedures at icann.org
>>> Subject: Comments on the ICANN Proposed Final Version of the
>>> Applicant Guidebook
>>>
>>> Comments on the ICANN Proposed Final Version of the Applicant Guidebook
>>>
>>> As the multistakeholder Dynamic Coalition for Freedom of Expression ,
>>> developed from the Internet Governance Forum, we wish to comment on
>>> Section 3.4.3 of the Proposed Final Version of the Applicant Guidebook.
>>>
>>> Domain names are a form of expression on the Internet and have been
>>> recognized as such by various court jurisdictions.[1] Moreover,
>>> censorship or suspension of domain names is often triggered by the
>>> content on websites, therefore we anticipate a risk that objections
>>> to new top level domains may often be motivated by an attempt to
>>> suppress or restrict certain forms of controversial or diverse
>>> expression.
>>>
>>> Freedom of expression is well recognized as a fundamental human
>>> right. The leading instruments are the 1948 UN Declaration of Human
>>> Rights and the International Covenant on Civil and Political
>>> Rights(ICCRP). Article 19 of the UDHR, which is considered customary
>>> international laws and applies to all countries states:
>>>
>>> Everyone has the right to freedom of opinion and expression; this
>>> right includes freedom to hold opinions without interference and to
>>> seek, receive and impart information and ideas through any media and
>>> regardless of frontiers.
>>>
>>> Under international standards as set by the UN Human Rights
>>> Committee, any limitations on freedom of expression must satisfy that
>>> the interference is provided in law and is clear and accessible, the
>>> interference must pursue a legitimate aim as set out under Article
>>> 19(3) of the ICCPR, and the restrictions must be necessary and
>>> proportionate.[2]
>>>
>>> Objecting to a TLD string on the grounds of its meaning, or the
>>> content that one expects to be associated with the domain,
>>> constitutes a form of prior restraint on expression. Because the
>>> scope of ICANN's jurisdiction over the domain name system is global,
>>> ICANN's TLD objection processes constitute a precedent-setting form
>>> of global content regulation. Given a well-recognized international
>>> right to freedom of expression, the criteria used to suppress TLDs
>>> must be very narrowly circumscribed and the authority must be used
>>> sparingly. Only those TLD strings that clearly violate
>>> well-established international laws should be blocked under this
>>> provision.
>>>
>>> Section 3.4.3, currently titled "Limited Public Interest Objection,"
>>> allow various parties to object to the creation of a new top level
>>> domain because "the applied-for gTLD string is contrary to general
>>> principles of international law for morality and public order."
>>>
>>> We believe that the current version of the AG does not sufficiently
>>> respect legitimate free expression rights. We encourage ICANN's board
>>> and staff to make appropriate modifications in the final applicant
>>> guidebook. We have the following concerns and propose a number of
>>> specific modifications.
>>>
>>>
>>> 1. The title should be changed to "Objections based on general
>>> principles of international law." The term "public interest" is too
>>> broad and ill-defined, and lacks any firm basis in international law.
>>> Labeling the class of objection "public interest" encourages parties
>>> to object to forms of expression that they dislike or disapprove of,
>>> regardless of their status under defined international law. We note
>>> that a cross-community working group that included governments (GAC),
>>> business/civil society domain name users and suppliers (GNSO) and
>>> internet users (ALAC) decisively rejected the term "public interest"
>>> as a label for this category of objection precisely for this reason.
>>> We ask ICANN staff to re-label this class of objection.
>>>
>>> 2. We note that numerous governments objected to inclusion of the
>>> terms "morality and public order" as the basis for these objections.
>>> They noted, correctly, that there is no global standard for morality
>>> and public order, as different cultures and communities have
>>> radically different standards. Here again, established international
>>> legal agreements are the more appropriate standard to cite rather
>>> than "morality and public order." We ask that the term "morality and
>>> public order" be stricken from the text. E.g., on p. 3-18 staff
>>> should replace "contrary to generally accepted legal norms relating
>>> to morality and public order that are recognized under principles of
>>> international law" with "contrary to generally accepted principles of
>>> international law."
>>>
>>> 3. The decision to censor a top level domain should not be outsourced
>>> to a private "dispute resolution service provider" as proposed in the
>>> Module 3 attachment. While we recognize the need for expert advice,
>>> we believe that there should be clear lines of accountability for any
>>> decision to suppress expression and that the ICANN board should make
>>> the decision directly. We are concerned about the long term
>>> implications of outsourcing such decisions to private DRSPs, who will
>>> tend to view dispute resolution as a revenue stream and thus develop
>>> an incentive to encourage and facilitate objections. We are also
>>> concerned about the lack of accountability inherent in the use of a
>>> revolving panel of experts selected by a subcontractor of ICANN. If
>>> the decisions are consistently wrong, what recourse do applicants or
>>> free speech advocates have?
>>>
>>> 4. Should there be a DRSP, we believe that it is entirely
>>> inappropriate for the International Chamber of Commerce (ICC) to
>>> serve as the authority selecting experts for disputes involving basic
>>> human rights such as freedom of expression. The ICC's International
>>> Centre for Expertise is a money-making service offered by a business
>>> advocacy group. It has no specific expertise or track record on
>>> freedom of expression issues. We object strongly to the prospect of
>>> the human right to communicate being adjudicated by this group.
>>> Various alternatives to the ICC were suggested during the
>>> cross-community working group deliberations.
>>>
>>> 5. We are also deeply concerned about the "Independent Objector"
>>> proposal. The Independent Objector seems to allow objections to be
>>> made on an anonymous and unaccountable basis. We believe that the
>>> burden of proof should always be on objectors to prove that a
>>> proposed top level domain name is illegal; the default should be to
>>> allow diverse and even controversial forms of expression. The
>>> existence of an Independent Objector seems to encourage parties to
>>> make objections secretly and at no cost, which reverses the proper
>>> burden of proof.
>>>
>>>
>>> [1] In the U.S., see The Taubman Company v. Webfeats, et al. 319 F.3d
>>> 770 (6th Cir., February 7, 2003), which stated "The rooftops of our
>>> past have evolved into the internet domain names of our present. We
>>> find that the domain name is a type of public expression, no
>>> different in scope than a billboard or a pulpit, and Mishkoff has a
>>> First Amendment right to express his opinion about Taubman, and as
>>> long as his speech is not commercially misleading, the Lanham Act
>>> cannot be summoned to prevent it." In Canada, (January 2001), a
>>> British Columbia court stated that "when a Web site is used for
>>> expression in a labour relations dispute, as opposed to commercial
>>> competition, there is... a reasonable balance that must be struck
>>> between the legitimate protection of a party's intellectual property
>>> and... [freedom] of expression." See also Article 19's analysis of
>>> the relationship between domain name regulations and the
>>> International Covenant on Civil and Political
>>> Rights.http://www.article19.org/pdfs/analysis/kazakhstan-s-domain-names.pdf
>>>
>>>
>>> [2] Para.3 of General comment 10 on Article 19 of the ICCPR., Human
>>> Rights Committee, (Nineteenth session, 1983), Compilation of General
>>> Comments and General Recommendations, Adopted by Human Rights Treaty
>>> Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 11 (1994).
>>>
>>>
>>> The Dynamic Coalition on Freedom of Expression and Freedom of the
>>> Media on the Internet, Internet Governance Forum.
>>>
>>> http://www.intgovforum.org/cms/dynamic-coalitions/75-foeonline
>